Law vs Government

An interesting discussion has sprouted in the comments to this prior post. My thoughts:

Law is essential to any society. A free society should have lots of laws and lots of lawyers. Big government prevents law from flourishing to its full potential in the same way big government prevents any private good from being supplied efficiently and robustly.

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Maybe I missed something,

Maybe I missed something, but it certainly seems we have lots of laws and lots of lawyers already -- far too many, really -- along with big, oppressive government.

I believe Jonathan Wilde

I believe Jonathan Wilde refers to a free society producing better law, not (necessarily) more law.

No, no. Stand up for your

No, no. Stand up for your turf. Society needs lots of laws and very few lawyers.

Society needs lawyers like

Society needs lawyers like it needs the French.

Is it that hard to find a

Is it that hard to find a job ?

Laws

The product of our big, oppressive government is legislation; laws are not a product of government, but rather established through precedent and common practice.

Still intrigued

laws are not a product of government, but rather established through precedent and common practice

Could you give a few examples?

Speed Limits

Speed limits are a common example; a sign suggests the speed limit on a given road is 45 MPH, but people drive down the road at 50-52 MPH and don't generally get stopped for speeding. The legislation mandates a speed of 45, but the law demonstrates that drivers may go a little faster without fear of punishment. Precedent and common practice have established a law that goes beyond legislation.

Back before we had governments and decisions were made by village elders, laws were established through custom. The village elder didn't churn out page after page of legislation dictating how people would live; people came to the village elder with disputes, and the village elder would use precedents and common practice to settle the dispute. This is how the concept of judges evolved, people well versed in custom that could fairly adjudicate disputes between two parties based on knowledge of previous precedent. Likewise, this is where the concept of lawyers came from, people versed in the precedents and common practices enough to help the uneducated present their case to said adjudicator.

This is why I mostly agree with the original comment that we need lots of laws and lawyers, and a lot less government. Legislation only confuses the law. A really good example of this is legislation mandating The War on Some Drugs. Many people find this legislation silly and stupid, and were it fairly adjudicated based on law, rather than legislation, some of those "illegal" drugs would likely be "legal". I base this statement on the fact that many people still use these drugs in spite of legislation that makes their consumption punitive. Legal by law, though not through legislation.

This is also where we get the legal concepts of malum in se and malum prohibitum: the former meaning "wrong in itself" and the later meaning "wrong by dictate". I realize those are not direct translations from Latin, but they suffice to make the point.

People have become confused over time because they have used the terms "legislation" and "law" interchangeably, and "legislators" are now referred to as "law makers". In addition, agents of the state are referred to as "law enforcement", when really they are enforcing legislation. It's a subtle distinction, and in my opinion just demonstrates how language can be used to confuse the issue rather than clarify it.

I see

Good post. Exactly what I was looking for.

You mentioned less Government, but not the complete lack of a Government (no Government). So I'm assuming you feel some iota of Government is beneficial if not necessary? or were you just momentarily careless with words?

Here:

This is why I mostly agree with the original comment that we need lots of laws and lawyers, and a lot less government.

While I'm convinced that laws are necessary (if not a logical necessity based on a broken question), I'm still trying to find a consistent and workable definition of non-Government that doesn't share traits with the boring old "typical" Government that everybody seems to hold in contempt.

Perhaps law does not require a Government, but maybe it becomes the Government, at some level.

non-Government

a consistent and workable definition of non-Government that doesn't share traits with the boring old "typical" Government that everybody seems to hold in contempt.

I defined government as a monopoly. Specifically, it's a territorial monopoly. David Friedman's proposal (I mentioned him) is that the same services - e.g. security against crime - can be provided by competitors none of whom have a territorial monopoly. The competitors, to avoid disagreements among themselves, can adjudicate their own disputes through courts. These courts would not be monopoly courts - they would also be competitors, none of them with a monopoly of any sort. They would be freely chosen ahead of tim (i.e. prior to any disputes) by pairs of competing security firms.

This setup is not "a government" because it's not a single organization. It's a market with many competitors.

Market processes would determine what laws become widely adopted. Security firms would prefer courts with better laws, and the other courts would copy those courts to improve their own competitiveness - and thus law would evolve, improving in response to market pressure.

In my view this is not a bad model of what actually goes on in society, has always gone on, with or without government, and which explains the existence of customary law. Also in my view, we are the product of this - not just in history but we have biologically evolved in part responding to the social situation. Morality is social rules which we have internalized, so that we feel them in the depths of our souls. Morality is the set of rules that has so far won in the informal marketplace of society.

In a sense, then, humanity is already an anarchy and the rules of the anarchy have already been established. We're even aware of them: we are aware that there are two sets of rules governing human behavior. One of them is created by the state and we are calling this "the law" nowadays. The other is poorly understood and sometimes rejected as non-existent, but it nevertheless exists and its name is "morality". We distinguish between something being illegal and it being wrong. In fact the distinction is between it being against the laws of the government and against the laws of the anarchy, which also go by the name of "natural law".

Simple precision

This setup is not "a government" because it's not a single organization. It's a market with many competitors.

A voluntary city state is a local monopoly of justice and law. It is indeed a government, but it is not a state.

Invaders raping women in your village, taking taxes and ruling brutally is a form of government, but it is not a state either.

A state is an institutionalized coercive government.

Not sure it would help

I'm receptive to making distinctions between related ideas, but I'm not sure that enough people are in agreement on the distinctions for it to be worthwhile to adopt some set of terms for good. "Government" sometimes means one thing and sometimes another, and rather than become pedantic on what is the "real" meaning I pretty much try to figure out what the guy in front of me means by the words and adopt that meaning for the duration of the discussion. In this case I took him to mean "things like the government of the United States" - from which I attempted to abstract the most salient features for the current purpose (to distinguish between government and law).

Rhetoric on stilts and it is

Rhetoric on stilts and it is impossible to determine universally and without question what is moral and why. It is like proving or disproving god. The best you can do is suggest likely possibilities. Not to mention that you will never get everyone to agree with you on what is moral. I find making millions of dollars while other starve immoral. Why do you get to force your vision of morality on everyone and I don't?

Because we have natural rights and should be left to govern ourselves? Well first of all I reject natural rights and to some extent so do most people (the caveat being that they rejected the traditional Lockean view). So again you have pluralism biting you in the ass.

Two things, either we can govern ourselves and are doing right now through choosing elected officials or we can't govern ourselves (as evidenced by the need for law enforcement and prisons and courthouses and lawyers) and need the help of others to keep our baser natures in check.

So before you go declaring that you have the one true morality from on high and that justifies you forcing it on everyone else, by toppling the state, maybe you should read about meta-ethics and epistemology.

Less Government

I was agreeing with the original statement, that government generally gets in the way of establishing law, and the bigger the government, the more intrusive it will be.

I think everyone has their own opinion on the optimal level of government, and I think this largely comes from using ambiguous terms. If we are defining government as "a legislative body that dictates how people should behave" then I agree with the idea that we need much less. If we define government, however, as "a third party that fairly adjudicates disputes between individuals" then I think this is necessary, and lots of anarcho-capitalists and libertarians and free market people have written many articles and books about how third party adjudicators can exist without requiring the coercive power of the state.

...how third party

...how third party adjudicators can exist without requiring the coercive power of the state.

You are correct. This is where the words get tricky for me, because that seems to me to be the dividing line between the market and government. If it isn't coercive or funded by coercion, I fail to see how it fits the old model of government. Perhaps that is the trouble of using government interchangeably with state.

Damned English language and your ambiguities!

Yes

I think everyone has their own opinion on the optimal level of government

Key phrase (for me) being: optimal level of government.

The conversations have almost taken a digital approach. A Government either is, or it is not. I haven't yet seen a discussion as to the degree of isness a Government should take.

I'm sure all that infighting has happened a hundred times over around here and has already been discussed at length.

The Law Merchant.

Lex Mercatoria

Governments can't stop it. Not even Superman can stop it.

Kryptonarchy

Able to coordinate prodigiously complex systems with a single precedent.

You, sir, are a nerd.

You, sir, are a nerd.

Nerds

Nerds give the best sex. Someone on WoW told me that.

The hard part

The hard part is explaining how this would work without collapsing into choas. If we didn't have a market economy, I think it would be difficult, in many cases essentially impossible, to convince anyone that such a thing could possibly work without collapsing immediately into incoherence and mass starvation. After all, who would decide who will do what and how goods should be allocated? Price mechanism you say? Who would decide prices, and how would they get other people to go along with their decision? People today think that a market is a possible form of economy for essentially one reason only: they live in one.

So firm is the grip of the present moment on people's imaginations, that many people think that there would be severe economic problems without the regulations that exist. Even though we have a largely market economy, people are not generalizing, they are not taking away the lesson that market economies are sustainable without the present-day intervention by the state.

If tomorrow the giving of hugs and handshakes were regulated by the government, within a generation people might well consider it idiotic and possibly dangerous to seriously doubt the obvious necessity of hug and handshake regulation.

Today we do not live in anarchy, and the same point holds. It is difficult, in many cases essentially impossible, to convince anyone that law is possible without the state.

You're all wrong.

Responding to all points:

  • Law and Order are public goods not private goods.
  • Big government does not stop the flow of private goods. Your confusing welfare state and command economy again.
  • Of course private law enforcement will have geographic monopolies and they can only be checked by bigger meaner law enforcement groups. Thus we have multiple small unacountable states where once we had one big mildly accountable state. And soon we have either cartels that agree to oppress together or we return o the private firefighters of new york style turf warfare. Anarcho-capitalism is utopianism.
  • Laws are established by enforcement, not established through precedent and common practice
  • Speed limits are created by government and are enforced by trafic cops. If you walk into a courtroom and say that you got away with speeding before so that means the law changed you would be sent to the psych ward.
  • Anarchy is absence of authority, legal chaos. Anarcho-capitalism isn't anarchy, it's rule by private business. Just as anarcho-syndicalism is rule by unions.
  • A state is any body that can create and enforce laws. None of you are advocating the abolition of the state, you are advocating for a different kind of state. To call your proposals anarchism is intellectually dishonest.

That is all.

Law and Order are public

Law and Order are public goods not private goods.

Because you said so? See this piece by DDF.

Big government does not stop the flow of private goods. Your confusing welfare state and command economy again.

Both interfere with the flow of private goods, either by stealing them or preventing their free production.

Of course private law enforcement will have geographic monopolies and they can only be checked by bigger meaner law enforcement groups.

Why? See this piece by Hoppe.

Sovereign states are in anarchy towards one another, yet they are not "constantly at war".

Thus we have multiple small unacountable states where once we had one big mildly accountable state. And soon we have either cartels that agree to oppress together or we return o the private firefighters of new york style turf warfare. Anarcho-capitalism is utopianism.

There is no such thing as accountability, accountability is a concept that lives in a system where you imagine rules and then assume people will follow them. In the real world, what matters are values and incentives.

Laws are established by enforcement, not established through precedent and common practice

This is simply factually wrong. Unless you tweak the meaning of law.

Speed limits are created by government and are enforced by trafic cops. If you walk into a courtroom and say that you got away with speeding before so that means the law changed you would be sent to the psych ward.

Strawman, you are completely misrepresenting jurisprudence. Besides, while it is generally bad, the law can change and precedents can be overturned.

Anarchy is absence of authority, legal chaos. Anarcho-capitalism isn't anarchy, it's rule by private business. Just as anarcho-syndicalism is rule by unions.

You're discussing semantics, pointless. Private / public is an artificial distinction. The government is a private business as well.

A state is any body that can create and enforce laws. None of you are advocating the abolition of the state, you are advocating for a different kind of state. To call your proposals anarchism is intellectually dishonest.

Semantics again.Call it Anarchy2... there, happy ?

Try Again

Because you said so?

Because they don't operate primarily for their own benefit. Anyone who could get a job putting himself in harms way daily could just as easily get a job in the meat packing industry. The problem with egoists is that they assume everyone else is one as well.

Sovereign states are in anarchy towards one another, yet they are not "constantly at war".

You're talking about only the modern first world. Look up feudalism, south american revolutions, african genocides, and asian wars. Nations that are large and self-sufficient do not have constant war. Where there is murky or ever changing boundries, a need to hold on to a scarce resource (i.e. protectees), and nearby competition for land and people then there is war. Not to mention that there is no mutually assured destruction, no peacekeeping force, or anything to prevent a mini-state from warring or subverting another to win land and business by means other than advertising and offering bargains. Mini-states are at a disadvantage to larger states.

In the real world, what matters are values and incentives.

Incentives like staying in power, not being arrested, and other accountability constraints.

Why? See this piece by Hoppe.

The link you sent is missing two or three pages. I can't comment on something I can't read. If his argument is anything like Peter Molyneux's then it's based around the idea that private security companies (or large corporations that contain private security companies) will play by the rules of western capitalism and not try and change them to their own benefit, even if it is predictably myopic

This is simply factually wrong. Unless you tweak the meaning of law.

I'm not the one making up new definitions of law and legislation and carrying out an overblown equivocation fallacy. Laws are established by enforcement. If we watch a village of natives with a a proto-state hetman like you were discussing and see that the wise odl man says, "Do not run by the river" and people may choose not to heed his pronouncement without any repercussion then he has given advice. If we see that those who break this command are punished or stopped form doing so then we would say that's a law. Laws are created by enforcement. If you cannot enforce it, it's not a law but a suggestion or advice or declaration of best practices.

Strawman, you are completely misrepresenting jurisprudence. Besides, while it is generally bad, the law can change and precedents can be overturned.

No, I'm talking about how laws change and you are talking about how cultural mores change. Permission and tradition do not establish law. The ability to punish makes a law, otherwise it's a law in name only or not even that.

You're discussing semantics, pointless. Private / public is an artificial distinction. The government is a private business as well.

Sorry, no. Government will and does things that are not in it's best interests in order to placate the interests of others. We can debate that this rarely happens at all but a private enterprise would avoid even the appearance of doing so. It's not semantics when we are dealing with two completely different concepts.

Semantics again.Call it Anarchy2... there, happy ?

No, because so called anarcho capitalists say that any state is evil but they themselves are advocating the existence of a state. It's contradiciton, intellectual bankruptcy, and evidence of a poorly thought out system.

What society needs is clear

What society needs is clear laws clearly enforced. For both of these to many of either laws or lawyers muddies the water.